'The employee has to have actual evidence of discrimination and not just a very strong suspicion'
“Employers want to ensure that discrimination doesn't happen and they have harassment-free environments, but at the end of the day employees have to understand that they need evidence if there's any harassment occurring. Evidence is key to a successful discrimination complaint and, of course, the complaint has to be tied to an enumerated [human rights] ground.”
So says Jeremy Herman, an employment lawyer at Samfiru Tumarkin in Ottawa and Toronto, after the Ontario Human Rights Tribunal dismissed a worker’s discrimination complaint because some of the worker’s allegations were already dealt with in other proceedings and the worker had no evidence showing a link between alleged unfair treatment and protected human rights grounds.
The worker was employed by the Humber River Hospital Volunteer Association (HRHVA) - a volunteer association providing services to patients and their families while also engaging in fundraising activities - from October 2016 to September 2018, working at a Tim Hortons franchise that the HRHVA operated inside the Humber River Hospital in Toronto.
According to the worker, on Oct. 13, 2017, his supervisor touched his buttocks and said they had “become big.” The worker also alleged that the supervisor tried to kiss him on three occasions in 2018 and suggested that they meet after work.
The worker also claimed that co-workers made death threats against him. In January 2018, a co-worker told him he would kill him and since he had been in prison before it wouldn’t be a problem going back. The worker said that this co-worker also hit him and pushed him and later told the supervisor he had a mission to carry out. Several months later, another co-worker threatened to kill him in front of the manager and the co-worker’s brother later took photos of him.
In 2018, the worker applied for multiple positions with the hospital. However, according to him, his manager told him not to apply with the hospital without telling him first. The worker spoke to the hospital’s recruitment specialist, who told him that his bosses at the HRHVA refused to allow it to hire him. On June 1, the worker spoke to his manager again about a position for which he had applied, but the manager reiterated that the HHRVA had to approve of the hospital hiring one of its employees before it could happen.
Harassment allegations
The worker’s employment was terminated on Sept. 26, 2018. Two days later, the worker sent a letter to the HRHVA’s retail manager outlining his harassment and other allegations. The HRHVA engaged a third-party investigator to investigate the allegations three weeks later. The investigator interviewed the manager and six employees at the Tim Hortons franchise. The worker wasn’t interviewed but the HRHVA claimed that he failed to participate.
The worker filed a complaint with the Ontario Ministry of Labour’s Occupational Health and Safety (OHS) division alleging workplace harassment. However, the OHS division didn’t issue any orders.
The worker also filed a complaint to the Ministry’s employment standards branch that he was paid less than a female co-worker who was doing the same work after the co-worker received a raise, and he was terminated without notice or pay in lieu of notice.
An employment standards officer (ESO) investigated the latter complaint and determined that the issues at play were “equal pay for equal work – sex” and “termination pay.” The ESO issued a decision regarding the equal pay issue and found that the worker’s termination was due solely to his disciplinary record, so termination pay wasn’t required.
Following the determination of his two complaints to the Ministry, the worker filed a human rights application on May 20, 2019. The application alleged that the hospital and the HRHVA discriminated against him based on race, colour, place of origin, citizenship, ethnic origin, sexual harassment, and reprised against him, in violation of the Ontario Human Rights Code.
Human rights complaint
The worker cited the sexual harassment by his supervisor in his human rights application, along with the allegations of death threats from co-workers, he was paid less than a female colleague, and wrongfully terminated from his position. In addition, the worker stated that the HRHVA had obstructed his ability to secure employment with the hospital after his termination.
The tribunal addressed several aspects of the case, ultimately determining that the worker’s human rights application had no reasonable prospect of success. It found that the ESO’s decision had appropriately dealt with key elements of the worker’s complaint, including his claims of unequal pay and wrongful dismissal, noting that the Ontario Employment Standards Act, 2000 (ESA) empowered ESOs with considering discrimination allegations under the code.
In addition, the ESA stipulates that an employee who files a complaint under the ESA “is barred from commencing a civil proceeding with respect to an employer’s failure to pay wages, comply with Part XIII of the ESA, or with respect to wrongful dismissal,” said the tribunal.
The tribunal also dismissed the worker’s claims of sexual harassment, noting that the allegations were reported after his employment had ended. Furthermore, an independent investigation commissioned by the HRHVA had already examined the claims, interviewing multiple individuals. Despite the worker’s assertion that he wasn’t contacted during the investigation, the tribunal found no grounds to proceed with the harassment allegations.
“[The HRHVA] interviewed the manager and six other individuals, so the tribunal was satisfied that the employer underwent a thorough enough investigation,” says Herman. “The tribunal gave a lot of credence to the fact that the HRHVA only found out about the allegations after the termination - there could be a different threshold for what is considered a sufficient investigation if these allegations were made during the worker’s employment and not after.”
As for the death threats from co-workers, the tribunal noted that these were likely “very disturbing events” for the worker, but he didn’t provide any evidence upon which he could rely in a hearing to show that the threats were related to any protected grounds under the code. The tribunal found the same problems for the worker’s allegations about why he wasn’t hired by the hospital “other than a bald allegation and his disagreement with the hiring process.”
Evidence of discrimination
“The employee has to have actual evidence of discrimination and not just a very strong suspicion,” says Herman. “It's a difficult thing, because the adjudicator, or a judge in a civil dispute, might believe the worker, but at the end of the day, it really comes down to evidence and that was missing here.”
The tribunal dismissed the worker’s application in its entirety as having no reasonable prospect of success in a hearing.
“In my practice, we deal with human rights issues fairly often, and when people feel like they were treated differently and faced adverse treatment, that could be discrimination,” says Herman. “But what the layperson is often missing is that it has to be grounded in one of the enumerated grounds under the code.”
If a worker feels they’ve been treated unfairly, there are other avenues in which to pursue a complaint, according to Herman.
“If a termination happened in bad faith, there are certainly damages for that, there are mental distress damages, there are ways of obtaining damages,” he says. “But it’s the sole jurisdiction of the [Human Rights] Tribunal to determine whether there was discrimination under the code - and in this case, there wasn't.”
Herman emphasizes that the HRHVA’s investigation of the worker’s allegations, even though it didn’t learn of them after the worker was terminated, was a wise action.
“If you want to do it right in the event of any complaints, you should investigate as thoroughly as possible, even if it's post termination,” he says. “And certainly, if the complaints are happening during employment, there is a higher standard - we don't know what the tribunal would have decided had these allegations been made during employment, but I posit that even a more thorough investigation would be required of the employer.”
